The Law of Succession which is the primal law on inheritance has been undergoing review to realign rights clearly espoused in the constitution of Kenya and other relevant laws that have since been enacted. On 17th November 2021, the President signed into law the law of succession (Amendment) Bill, 2019 (Now the Law of Succession (Amendment) Act 2021. The new Act amends certain provisions of the Law of Succession Act, 1981 CAP 160 and introduced new amendments as will be discussed hereinbelow.
The principal object of this Bill is to amend the Law of Succession Act to provide for gender equity in succession matters. The Bill in amending the Law of Succession Act seeks to ensure that the Act provides for gender equity with regard to succession matters. In addition, the amendment seeks to avoid situations where opportunistic schemers successfully claim a stake in a deceased person’s estate hence disenfranchising the legitimate heirs of the deceased. Equally, the amendment seeks to provide clarity on who a dependant of a deceased person is and gives stronger protection to the spouse, children, and extended family of a deceased person in succession matters.
The Amendment also seeks to address some of the most pertinent issues that contribute to succession law disputes in Kenya, including:
- Dependency and Gender Equality and in particular the recognition of widowers as dependents in their own right without the need to provide evidence to prove that they were dependents;
- Equal distribution rights between parents of the deceased. Previously, the father to the deceased had prior rights to the mother in respect of the estate of the deceased. The proposed amendments will ensure that mothers of the deceased who die intestate are entitled to receive an equal share to the fathers of the deceased in the event the deceased did not leave behind spouses or children;
- Re-marriage and what will happen to beneficiaries’ interests upon subsequent marriages.
- Former wives are no longer recognized as dependants.
To this end, a detailed analysis of the law of succession (Amendment) Bill, 2019 (Now the Law of Succession (Amendment) Act 2021 has been provided hereunder. In addition, key issues arising under the law of succession have been discussed in an attempt to amplify public education and create awareness on the Laws of Succession, Marriage Act, and the Matrimonial Property Act.
An analysis of the Law of Succession (Amendment) Act 2021
| Issues | Interpretation and Implication of the Law of Succession |
| (i) Who is entitled to inherit the deceased’s Property? | Under the New Act, spouse(s) and the children of the deceased are considered dependants regardless of whether they were being maintained by the deceased or not.
Former wives (divorcees) will no longer be dependants |
| (ii) Must dependants prove that they were being maintained by the deceased in order to qualify as dependents? | The second category of persons listed in section 29(b) must prove that they were being maintained by the deceased prior to his death; that is, the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters must prove dependency. |
| (iii) Should spouses prove maintenance by the deceased prior to his/her death in order to inherit? | Husbands will no longer be required to prove that they were being maintained by the deceased in order to qualify as dependants in order to inherit from the estate of their deceased spouse. |
| (iv) Who is a spouse for the purposes of succession? | Only spouses who have contracted a valid marriage under the Marriage Act will be considered as beneficiaries. |
| (v) Can cohabitees inherit under the New Act? | The Marriage Act recognizes five types of marriages; Civil, Hindu, Christian, customary, or Islamic law marriage. It does not recognize cohabitees as spouses. As such, cohabitees are not recognized as beneficiaries under the law of succession. |
| (vi) What constitutes Matrimonial Property? | Matrimonial property can only be inherited by spouses. As such, surviving spouses can claim exclusion of matrimonial property from the intestate estate of a deceased spouse. |
| (vii) Does Matrimonial Property form part of the estate that can distribute to beneficiaries? | Residue estate has now been clearly defined in the Act and distinguished from matrimonial property This means that only the residual estate shall be available for distribution amongst the beneficiaries. |
| (viii)What Constitutes Residual Property? | Property of the deceased spouse available for distribution under intestacy has greatly reduced. There is a likelihood of a large percentage of the property devolving to the surviving spouse |
| (ix) What amounts to intermeddling? | Previously the Act was vague as to the actual definition of intermeddling. The definition of intermeddling has now been expanded to protect the estate of the deceased from unlawful and unauthorized actions and also protect spouses or spouses and children of the deceased from being forcefully ejected from the matrimonial home.
The Act now recognizes ejecting by force or by coercion a surviving spouse or child from the matrimonial home and any unlawful dealing with the deceased person’s estate as intermeddling. |
| (x) What happens when the deceased has left one surviving spouse and children? | Previously, the Act was discriminatory against women as it implied that only a widow would lose life interest in the event they remarried.
As it stands now, a widow or widower shall lose their life interest in the whole of the remainder of the net intestate estate once they re-marry The amendment has now brought about gender equity and equality as envisaged in Article 27 of the Constitution. |
| (xi) What happens when the deceased has left one surviving spouse but no children? | This amendment has brought about gender equity and equality as envisaged in Article 27 of the Constitution. It no longer only applies to widows but also to widowers, that is to say, both a husband and a wife can lose their life interest in the deceased spouse’s estate upon remarriage.
A surviving spouse will only be entitled to a life interest in the whole residue of the net intestate estate, subject to whether he or she has remarried. |
| (xii) What happens when the deceased has left no surviving spouse or children? | Both parents now have equal rights in case their child dies intestate leaving no surviving spouse or child.
Previously, the father of the deceased was brought out as superior to the mother, and as such the mother would only inherit if the father of the deceased is dead. The Amendment has now elevated the mother of the to the same level as the father of the deceased. If both parents are alive, they will inherit the deceased’s estate in equal shares. |
CONCLUSION
Overall, the effect of the amendments has been to embrace the principle of gender equality espoused under Article 27(4) of the Constitution of Kenya into the law on succession in Kenya. It is indeed appalling that the Law of Succession Act previously perpetuated gender biases and differential treatment that is prejudicial to women for the most part. The Amendments to the Law of Succession Act are therefore a very welcome move to the extent that they promote gender equality
